9th Circ rejects ‘departure bar’ to reopening deportation cases

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  • Rule only applies when non-citizens move to reopen cases
  • Ruling deepens circuit split

(Reuters) - A U.S. appeals court has ruled that immigration judges have the authority to re-open deportation cases even after individuals have been removed from the country or voluntarily departed, and the Board of Immigration Appeals (BIA) was wrong to find otherwise.

A unanimous three-judge panel of the 9th U.S. Circuit Court of Appeals on Wednesday said a federal regulation known as the "departure bar," which prohibits immigration courts from revisiting a case once a non-citizen leaves the U.S., does not apply where judges reopen cases in their own discretion rather than in response to a party's motion.

The panel sided with Jaime Balerio Rubalcaba, a Mexican national who had asked an immigration judge to reopen his deportation case in 2016, about two decades after he returned to Mexico before later illegally reentering the U.S.

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The court joined the 10th Circuit in holding that the departure bar does not limit immigration judges' sua sponte authority to reopen cases. The 2nd and 5th Circuits have reluctantly held otherwise, saying they were required to defer to the BIA's broader reading of the regulation.

Rubalcaba's lawyer, Elsa Martinez, did not immediately respond to a request for comment on Thursday. Nor did the U.S. Department of Justice, which represents the BIA.

Rubalcaba in 1995 was apprehended while attempting to illegally enter the U.S. in San Ysidro, California, and was deported, according to the decision. He unlawfully reentered the country a few months later, and has lived in the U.S. since then.

In 2016, Rubalcaba asked an immigration judge to exercise her sua sponte power to reopen his 1995 deportation case so that he could apply for adjustment of status based on a visa petition his father had filed on his behalf.

The judge declined to do so, saying his motion to reopen was untimely and that his case did not present an exceptional situation that would justify reopening the case in her discretion.

The BIA affirmed, relying exclusively on the departure bar and without addressing the judge's other findings.

The departure bar regulation states that "a motion to reopen or to reconsider shall not be made by or on behalf of a person ... subsequent to his or her departure from the United States." The BIA reasoned that because Rubalcaba had left the U.S. in 1995, the regulation applied.

The BIA had first held that the regulation imposed a limitation on judges' sua sponte authority in the 2008 case Matter of Armendarez-Mendez.

Rubalcaba sought review of the decision, arguing that the departure bar only applied to non-citizens' motions to reopen, and not to immigration judges' discretionary powers. The 9th Circuit on Wednesday agreed.

"Sua sponte reopening does not require a motion, and has historically been permitted at any time," Circuit Judge Mary Murguia wrote. "According to the plain text of the regulation, the departure bar applies only to a motion to reopen or reconsider."

The court sent the case back to the BIA to review the immigration judge's alternative bases for declining to reopen Rubalcaba's case.

The panel included Circuit Judge Milan Smith and 6th Circuit Judge Danny Boggs, who sat by designation.

The case is Rubalcaba v. Garland, 9th U.S. Circuit Court of Appeals, No. 17-70845.

For Rubalcaba: Elsa Martinez

For the government: Erik Quick of the U.S. Department of Justice

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.